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Search Incident to Arrest

Search Incident to Arrest

The Fourth Amendment generally requires law enforcement to obtain a warrant based on probable cause before searching a person her home or her belongings. For nearly a century however courts have recognized a limited exception when the search is "incident to an arrest." The original justification for this exception was to enable police officers to find weapons on the arrestee or prevent the destruction of evidence thus allowing the officers to search the arrestee's person and the area within her immediate control. The exception has expanded over the years to allow police under some circumstances to search the contents of containers found on or near the arrestee.

Applying this exception to laptops cell phones and other digital devices makes little sense. Officers can seize these devices and then seek a warrant to search for relevant information if they have probable cause. Yet we see an increasing number of cases where law enforcement indiscriminately rummages through these devices without a warrant and then seeks to justify the intrusion as a search incident to arrest.

EFF is working to help courts correctly apply the search incident to arrest doctrine to new technologies. Smart phones such as the iPhone and Blackberry contain vast amounts of personal data like emails photos contact lists and text messages as well as the capability to access more information over the Internet. The mere fact that someone is carrying one of these phones when she is arrested does not justify police access to that sensitive information without judicial supervision.

While this opinion won't really touch on other surveillance programs -- like the aforementioned Hemisphere project -- it could affect them in the long run, according to Electronic Frontier Foundation attorney Hanni Fakhoury.
"It's a fantastic opinion both because it creates a bright line rule -- no searches of cell...

Hanni Fakhoury, staff attorney at the Electronic Frontier Foundation, which filed amicus briefs to the U.S. Supreme Court supporting cellphone protections, told Newsweek that the decision could affect several pending court cases. “Some of the discussion in the court opinion that talks about technology can very easily...

The Electronic Frontier Foundation's’ Hanni Fakhoury says that law enforcement use of Stingray devices, which fake cell-tower signals to collect phone data, could be subject to legal challenge under the same reasoning as Riley v. California.

Other potential challenges to foreign surveillance watched the Portland case closely, said Electronic Frontier Foundation staff attorney Hanni Fakhoury, including a pending challenge in Colorado.
Mohamud "is at such a significant disadvantage," Fakhoury said. "He doesn't even have the evidence to make the challenge. That's the whole problem in this...